The Florida Bar
American Bar Association
Weston Florida Chamber of Commerce

Evolving Litigation Concerning Same-Sex Couples or Nontraditional Households in the State of Florida (Continued)

The child was born and the child's name had the same sex-partner's names hyphenated as the child's last name. The same-sex partners separated and the child resided with the Birth Mother.

While the Biological mother provided child support on behalf of the minor child. The parties eventually agreed to share time with the minor child between their two households. The minor child established a bond to both of the women and considered them both Mothers.

The relationship of the same-sex partners deteriorated and the Birth Mother (Appellee) decided to quit her job and sever her contact with the Birth Mother. The minor child was removed from the jurisdiction and her whereabouts were concealed. After the Birth Mother was discovered in Australia, the Biological Mother filed legal documentation in order to pursue her parental rights in the Florida Court system.

The Trial Judge found that the behavior of the Birth Mother was morally reprehensible and harmful to the well-being of the minor child. However, the Trial Judge did not feel that there were any law in the State of Florida which would allow the Biological Mother to have visitation or parental responsibility over the minor child and concluded that pursuant to the Florida Statute 742.14 and existing case law that the Biological Mother was an Egg Donor and therefore had no parental rights to the minor child no matter what the parties intent was. That same-sex partner do not meet the definition of a Commissioning couple because only a Father and a Mother could be a Commissioning Couple pursuant to Florida Law. There could be no protection under the law for the Biological Mother as a donor of her Ova and she was no entitled to parental rights. The Trial Judge in his ruling specifically stated, "If you Appeal this, I hope I'm wrong".

The four legal arguments advanced by the Biological Mother were as follows:

  1. That Florida Statue 742.14 denies an Ovum Donor parental rights to a minor child.
  2. That the Biological Mother and the Birth Mother could not qualify to Adopt the minor child and therefore the Florida legislature forbids either gay or lesbian couples from sharing parental rights to a minor child
  3. That a written Waiver which was executed at the reproductive doctor's office could not be deemed a Legal Contract which conferred Parental Rights on the Biological Mother.
  4. That the Birth mother argues that since the same-sex partners had separated that only the Birth Mother could have sole parental rights to the minor child.

Based upon the first argument, the Appellate court did look to the intent of the two women and concluded that the two women involved in a lesbian relationship had agreed that one partner would provide her ova to impregnate her partner in a lesbian relationship with the intention of producing a child to be raised in their joint home. When partners decide to produce children in this manner, both of the partners are deemed parents. That in the present case intention was to be considered and that the Biological Mother was not a Donor because she was intended to give her Ova away.

The Court cited Beagle v. Beagle, 678 So2d 1271 (Fla S. Ct 1999), holding that Article I, Section 23 of the Florida Constitution prohibits the State from intruding upon the parents fundamental right to raise their children except in cases where the child is threatened with harm. (SEE in Re: Adoption of Baby E.A.W., 658 So2d 961 (Fla S. Ct 1995) The United States.

Supreme Court has held that natural parents have a fundamental liberty interest in the care, custody, and management of their children. (SEE Santosky v. Kramer, 455 U.S. 745 (United States Supreme Court 1982).

In Grissom v. Dade County, 293 So2d 59 (Fla. S. Ct 1974), the Florida Supreme Court stated that the Fundamental right to have children either through procreation or adoption is so basic as to be inseparable from the rights to enjoy and defend life and liberty and to pursue happiness. (SEE Article I Section 2 of the Florida Constitution).

In Skinner v. Oklahoma, 316 U.S. 535 (United States Supreme Court 1942) procreation was called one of the basic civil rights of man. In Troxel v. Granville, 530 U.S. (United States Supreme Court) called the liberty interests of parents in the care, custody, and control of their children is perhaps the oldest fundamental liberty interests recognized by this court.

Application of Florida Statue 742.14 by the Trial Court to deny the Appellant parental rights to her child cannot withstand strict scrutiny and violates Appellant's constitutional rights to equal protection and privacy under the United States and Florida Constitutions. SEE Lawrence v. Texas, 539 U.S. 558 (United States Supreme Court 2003) "(stating that constitutional protections are provided to individuals making personal decisions relation to such matters as procreation and child-rearing because the Constitution demands respect for the autonomy of the person making these decisions and that "persons in a homosexual relationship may seek autonomy for these purposes just as a heterosexual persons do"), Washington v. Glucksberg, 521 U.S.S 702 (United States Supreme Court 1997) the Constitution provides heightened protection against government interference with certain fundamental rights and liberty interests," which include the right to have children. Carey v. Population Services.., International, 431 U.S. 678 (United States Supreme Court 1977), the Court state that, "Where a decision as fundamental as...whether to bear or beget a child is involved, regulations imposing a burden on it may justified only by a compelling state interests, and must be narrowly drawn to express only those interests." Cleveland Board of Education v. LaFleur, 414 U.S. 632 (United States Supreme Court 1974), the Court states; " There is a right to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child". Procreation is fundamental right guaranteed by the Constitution and in the present case the birth Mother/Appelle has failed to meet her burden of showing why Florida Statute 742.14 withstands strict scrutiny and does not violate the Florida Constitution.

In the present case, the facts demonstrated that the Appellant/Biological Mother had formed and maintained a loving and caring relationship to the minor child and formed a parental relationship. That she should be determined to be an equal partner and parent to this minor child because she never intended to relinquish her parental rights. That Florida Statute 742.14 should be deemed unconstitutional because it did not meet the scrutiny test and denied the Appellant her constitutional rights to privacy and equal protection under the law.

The Court also concluded that the waiver provisions in the informed Consent Form did not form a valid contract in which the Biological Mother had waived her rights to the minor child. The form would only apply to a donor and in the present case the evidence presented demonstrated that the two women represented themselves as same-sex partners who were seeking reproductive therapy and intended to raise the child as a family. The court cited K.M. v. E.G. 117 p.3RD 673 (California Suprme Court 2005), which stated that two women who are same-sex partners in a loving relationship produce a child where one woman providing her ova and her partner bearing the minor child both same-sex partners were deemed the parents of the minor child.

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